INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “
Agreement ”) is made as of the __ day of April, 2009,
between Delcath Systems, Inc., a Delaware corporation (the “
Company ”), and ____________ (“
Indemnitee ”).
WHEREAS, Indemnitee is a member of the Board of
Directors of the Company (the “ Board of Directors
”) and/or an officer of the Company and in such capacity, or
capacities, is performing valuable services for the Company;
and
WHEREAS, the Company’s Amended and
Restated Certificate of Incorporation (together with the
Company’s Amended and Restated By-Laws, the “
Governing Instruments ”) provides for the
indemnification of the Company’s directors and officers to
the fullest extent permitted by law; and
WHEREAS, Section 145 of the General Corporation
Law of the State of Delaware (the “ DGCL ”)
specifically provides that it shall not be deemed exclusive of any
other rights to indemnification or advancement of expenses to which
directors or officers may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise;
and
WHEREAS, the number of lawsuits and
stockholders’ derivative lawsuits against corporations, their
directors and officers has increased in recent years, such lawsuits
frequently are without merit and seek damages in amounts having no
reasonable relationship to the amount of compensation received by
the directors and officers from the corporation, and such lawsuits
whether or not meritorious are expensive and time-consuming to
defend; and
WHEREAS, adequate directors and officers
liability insurance may not be available at a reasonable cost;
and
WHEREAS, the Company desires that Indemnitee
continue to serve as a director and/or an officer of the Company
free from undue concern for unpredictable or unreasonable claims
for damages by reason of Indemnitee’s status as a director
and/or an officer of the Company, by reason of Indemnitee’s
decisions or actions on the Company’ behalf or by reason of
Indemnitee’s decisions or actions in another capacity for the
Company while serving as a director and/or an officer of the
Company; and
WHEREAS, the Board of Directors has determined
that the Company’s entry into this Agreement is not only
reasonable and prudent but also promotes the best interests of the
Company and its stockholders; and
NOW, THEREFORE, in consideration of
Indemnitee’s continued service as a director and/or an
officer of the Company and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1.
Indemnification . Subject only to the exclusions set forth
in this Agreement, the Company hereby agrees (i) to hold harmless
and indemnify Indemnitee, from time to time,
against any and
all Expenses and Liabilities (as such terms are defined in Section
1(h) below) to the fullest extent authorized or permitted by the
DGCL (or any other applicable law), the Governing Instruments in
effect on the date hereof or as such law or the Governing
Instruments may from time to time be amended (but in the case of
any such amendment, only to the extent such amendment permits the
Company to provide broader indemnification rights than such law or
Governing Instruments permitted the Company to provide prior to
such amendment) and (ii) to take all such action as may reasonably
be required or requested to carry out such indemnification.
Notwithstanding the foregoing, the Company shall not be required to
indemnify Indemnitee for any Expenses and/or Liabilities to the
extent that such amounts have been paid directly to or for the
account of Indemnitee pursuant to any directors and officers
liability insurance policy maintained by the
Company. Without limiting the generality of the
foregoing:
(a) Third Party
Proceedings . The Company shall indemnify Indemnitee if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (as defined in Section 1(h) below), other than a
Proceeding by or in the right of the Company, by reason of the fact
that Indemnitee is or was a director and/or an officer of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust or
other enterprise (including, without limitation, service with
respect to any employee benefit plan), against any and all Expenses
and Liabilities actually and reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with such Proceeding,
and any appeal therefrom, provided that Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe Indemnitee’s conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that Indemnitee did not
satisfy the foregoing standard of conduct to the extent applicable
thereto.
(b) Proceedings By
or in the Right of the Company . The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be
made a party to any Proceeding by or in the right of the Company by
reason of the fact that Indemnitee is or was a director and/or an
officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture,
trust or other enterprise (including, without limitation, service
with respect to any employee benefit plan), against any and all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with the defense or
settlement of such Proceeding, and any appeal therefrom, if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Company unless and only to
the extent that the Court of Chancery of the State of Delaware (the
“ Chancery Court ”) or the court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses which the Chancery Court or
such other court shall deem proper.
(c) Successful
Defense . To the extent that Indemnitee has been successful on
the merits or otherwise in the defense of any Proceeding referred
to in Section 1(a) or 1(b) above, or in the defense of any claim,
issue or matter therein, the Company shall indemnify Indemnitee
against any and all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith.
Dismissal of any Proceeding with prejudice, or a settlement not
involving any payment or assumption of liability, shall be deemed a
successful defense.
(d) Partial
Indemnification . If Indemnitee is entitled to indemnification
under any provision of this Agreement for a portion of the Expenses
and/or Liabilities actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in the investigation, defense,
appeal or settlement of any Proceeding, but not, however, for the
total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is
entitled.
(e) Advancement of
Expenses . All Expenses incurred by Indemnitee or on
Indemnitee’s behalf in the investigation, defense or appeal
of a Proceeding referred to in either of Sections 1(a) and 1(b) of
this Agreement, or in enforcing Indemnitee’s rights under any
provisions of this Agreement, shall be paid by the Company in
advance of the final disposition of such Proceeding in the manner
prescribed by Section 3 below.
(f) Amendments to
Indemnification Rights . The Company shall not adopt any
amendment to its Governing Instruments, the effect of which would
be to deny, diminish or encumber Indemnitee’s rights to
indemnity pursuant to the Governing Instruments, the DGCL or any
other applicable law as applied to any act or failure to act
occurring in whole or in part prior to the date (the “
Effective Date ”) upon which the amendment was
approved by the Board of Directors. In the event that the Company
shall adopt any amendment to its Governing Instruments the effect
of which is to change Indemnitee’s rights to indemnity under
such instruments, such amendment shall apply only to acts or
failures to act occurring entirely after the Effective Date
thereof. The Company shall give written notice to Indemnitee of any
proposal with respect to any such amendment no later than the date
such amendment is first presented to the Board of Directors (or any
committee thereof) for consideration, and shall provide a copy of
any such amendment to Indemnitee promptly after its
adoption.
(g) Indemnification
for Expenses as a Witness . To the extent Indemnitee is, or
reasonably expects to be, by reason of the fact that Indemnitee is
or was a director and/or an officer of the Company (or is or was
serving at the Company’s request in any one or more of the
capacities described in Sections 1(a) and 1(b) of this Agreement),
a witness in any Proceeding, the Company shall indemnify Indemnitee
against all Expenses in connection therewith.
(h) Certain
Definitions . As used in this Agreement:
(i) “
Expenses ” shall mean means any and all expenses to
the fullest extent permitted by the DGCL (or any other applicable
law), the Governing Instruments in effect on the date hereof or as
such law or Governing Instruments may from time to time be amended
(but, in the case of any such amendment, only to the extent such
amendment broadens the range or amount of expenses that may be paid
or reimbursed relative to the range or amounts permitted before
such amendment), including, without limitation, any and all
retainers, court costs, transcript costs, fees of experts, witness
fees, private investigators, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage,
fax
transmission charges, secretarial services, delivery service fees,
attorneys’ fees, and all other costs, disbursements or
expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding or in connection with
seeki
